Lancaster-Fairfield Community Hospital

National Labor Relations Board - Board Decisions

May 31, 1991

303 N.L.R.B. 238 (N.L.R.B. 1991)

238
303 NLRB No. 32
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings. We also find
no merit in the Respondent’s allegations of bias and prejudice on the part of
the judge. Thus, we perceive no evidence that the judge prejudged the case,
made prejudicial rulings, or demonstrated a bias against the Respondent in his
analysis or discussion of the evidence. Similarly, there is no basis for finding
that bias and prejudice exist merely because the judge resolved important fac-
tual conflicts in favor of the General Counsel’s witnesses. NLRB v. Pittsburgh
Steamship Co., 337 U.S. 656, 659 (1949).
In affirming the judge’s credibility determinations, we do not adopt his char-
acterization of Vice President Robert Coholich’s testimony as ‘‘gratuitous.’’ In
addition, the judge inappropriately drew an adverse inference from the Re-
spondent’s failure to call its former maintenance supervisor, Lee Miller, as one
of its witnesses, in view of the fact that the Respondent had Miller replaced
shortly after the events at issue in this case.
2 We agree with the judge that the Respondent did not consider employee
Paxton’s qualifications before selecting employee Shonk for the Technician II
position in September 1989, and that the Respondent’s asserted reliance on
Shonk’s allegedly superior qualifications was pretextual. Accordingly, we find
it unnecessary to pass on the judge’s findings that Paxton was ‘‘proficient’’
in the skills required for the Technican II position which he requested and that
Shonk had ‘‘no experience’’ in those areas. In addition, and contrary to the
judge, we find that the letter from the Respondent’s president, McKelvey, to
Paxton did not contain an implicit suggestion that Paxton would be given the
next transfer.
3 Chairman Stephens would hold that Supervisor Miller’s action in mid-June
1989 in responding to a complaint from Paxton about a switch from day shift
to second shift with an antiunion tirade focused specifically on Paxton and
others ‘‘who think the Union is going to help you’’ is relevant to an assess-
ment of Miller’s motive in recommending employee Shonk over Paxton for
the maintenance position inside the hospital. He also notes that the motive of
a supervisor whose recommendation plays a part in an employment decision
is imputable to the employer. JMC Transport v. NLRB, 776 F.2d 612, 619 (6th
Cir. 1985), and cases there cited. Chairman Stephens agrees with his col-
leagues, however, that even without consideration of the statements by Super-
visors Miller and Ebel, the record supports an inference that the Respondent’s
denial of Paxton’s transfer application and its assignment of him to an isolated
job in the boiler room were motivated by his role as the chief union organizer
in the maintenance department.
Lancaster-Fairfield Community Hospital and Bus,
Sales, Truck Drivers, Warehousemen and
Helpers Local Union 637, affiliated with the
International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, AFL–CIO. Case 9–CA–27006
May 31, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On June 29, 1990, Administrative Law Judge Rich-
ard H. Beddow Jr. issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions as modified,2 and to adopt the recommended
Order as modified.
1. The Respondent has excepted, inter alia, to the
judge’s finding that certain antiunion comments made
by its maintenance department supervisors constitute
evidence that the Respondent’s decisions to reject em-
ployee Richard Paxton’s September 1989 transfer ap-
plication and to transfer him to a position in the boiler
room in November 1989 were motivated by antiunion
animus. In the Respondent’s view, the supervisors’
statements were protected by Section 8(c) of the Act
and therefore could not be used as evidence in any un-
fair labor practice proceeding. We find it unnecessary
to pass on this contention. Thus, the judge’s finding
that the Respondent’s asserted reasons for its actions
were pretextual, a finding which we adopt, when com-
bined with the timing of the transfer decisions after the
Respondent learned of the Union’s organizing cam-
paign, Paxton’s role as a leading union supporter, and
the questionable handling of his first transfer request,
provides an independent basis for our determination
that the Respondent’s actions were unlawfully based
on Paxton’s union activities. See, e.g., Shattuck Denn
Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir.
1966); Wright Line, 251 NLRB 1083, 1088 fn. 12
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982), approved in NLRB v. Transpor-
tation Management Corp., 462 U.S. 393 (1983); Arm-
strong Rubber Co., 283 NLRB 625, 637 (1987). Ac-
cordingly, we do not rely on the supervisors’ state-
ments in finding that the Respondent’s actions violated
Section 8(a)(3).3
2. The Respondent has also excepted to the judge’s
recommendation that Paxton receive backpay at a
Technician III level since the date of his transfer to the
Respondent’s boiler room. We find merit to this excep-
tion. The record shows that the Respondent does not
distinguish between Technician II and Technician III
employees in the assignment of duties. Thus, we find
no support for the judge’s inference that, because the
individual whom Paxton replaced in the boiler room
was a Technician III, Paxton was entitled to receive
Technician III wages. Progression from a Technician II
to a Technician III involves a promotion, which Paxton
neither requested nor received. Accordingly, we have
modified the judge’s recommended remedy and order
to eliminate the references to backpay.
AMENDED REMEDY
We shall order that the Respondent offer Richard
Paxton immediate transfer to the position to which he
requested transfer in September 1989 or, if that posi-
tion no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or any other
rights and privileges previously enjoyed.
239LANCASTER-FAIRFIELD COMMUNITY HOSPITAL
1 All following dates will be in 1989 unless otherwise indicated.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Lan-
caster-Fairfield Community Hospital, Lancaster, Ohio,
its officers, agents, successors, and assigns, shall take
the action set forth in the Order as modified.
1. Substitute the following for paragraph 2(a), delete
paragraph 2(b), and reletter the subsequent paragraphs.
‘‘(a) Offer Richard Paxton immediate transfer to the
inside Technician II General position which he re-
quested in September 1989 or, if that position no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or
privileges previously enjoyed.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act Together for other mutual aid or protec-
tion
To choose not To engage in any of these pro-
tected concerted activities.
WE WILL NOT deny transfer of otherwise qualified
employees or implement transfer of employees to posi-
tions different from that which were applied for be-
cause of their engaging in activities protected by Sec-
tion 7 of the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of rights guaranteed them by Section 7 of the Act.
WE WILL offer Richard Paxton immediate transfer to
the inside Technician II General position which he re-
quested in September 1989 or, if that position no
longer exists, to a substantially equivalent position,
without prejudice To his seniority or any other rights
and privileges previously enjoyed.
LANCASTER-FAIRFIELD COMMUNITY
HOSPITAL
Mark G. Mehas, Esq., for the General Counsel.
Rick Shaw, Esq., of Washington, D.C. and G. Roger King,
Esq., of Columbia, Ohio, for the Respondent.
Rodger Gable, of Zanesville, Ohio, for the Charging Party.
DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW JR., Administrative Law Judge. This
matter was heard in Lancaster, Ohio, on April 19, 1990. Sub-
sequently, briefs were filed by Respondent and the General
Counsel. The proceeding is based on a charge filed Novem-
ber 17, 1989,1 by Bus, Sales, Truck Drivers, Warehousemen
and Helpers Local Union 637, affiliated with the Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, AFL–CIO. The Regional Di-
rector’s complaint dated January 11, 1990, alleges that Re-
spondent, Lancaster-Fairfield Community Hospital, of Lan-
caster, Ohio, violated Section 8(a)(1) and (3) of the National
Labor Relations Act by failing to award a vacant mainte-
nance position to its employee Richard Paxton on or about
September 8, 1989, and by refusing to implement Paxton’s
transfer to a vacant maintenance position which he success-
fully bid upon and was awarded, because of his union or
other protected concerted activities.
On a review of the entire record in this case and from my
observation of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent operates a health care institution. It annually
receives revenues in excess of $100,000 and it annually pur-
chases and receives goods and materials valued in excess of
$2000 directly from points outside Ohio. It admits that at all
times material it is, it has been an employer engaged in oper-
ations affecting commerce within the meaning of Section
2(2), (6), and (7) of the Act. It also admits that the Union
is a labor organization within the meaning of Section 2(5) of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
Richard Paxton was hired on August 18, 1983, as a part-
time Technician II in the plant engineering department and
became a full-time employee approximately a year later, with
primary responsibilities as a groundskeeper. He performed
these duties until November 1989 when, he was transferred
to what had been a Technician III Mechanical position in the
hospital boiler room, however, the position he had requested
transfer to was an inside Technician II general position. After
the transfer to the unexpected position, he continued to re-
ceived the same Technician II pay he had been receiving.
Previously, on August 25, Paxton applied for a vacant in-
side Technician II General position. Respondent’s form ‘‘Va-
cant Position Posting Request’’ specifically stated that a
‘‘Person needed to fill position vacated by Roger May,’’ and
was signed by Lee Miller, department manager. Employee
Paul Shonk was given the job prior to Paxton’s interview for
the position on September 7. Paxton filed a grievance over
his failure to get the job the day following his interview.
240 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 This information is reflected, in part, in G.C. Exh. 5 which is hereby re-
ceived into evidence.
At the time Paxton applied for the vacant Technician II
position he was already a Technician II General so no dif-
ference in pay was involved, however, the Technician II po-
sition for which he applied was an inside position and he
wanted to work inside rather than the primary outside work
that was involved in the groundskeeper position.
The job denied to Paxton was awarded to Paul Shonk.
Paxton was told by Lee Miller, manager of plant mainte-
nance, that the reason was that the other candidate was sig-
nificantly more experienced and had a better education (some
junior college credits). Paxton, however, testified that he had
the specific experience required for the inside Technician II
job because he regularly performed inside maintenance work,
particularly when it was raining or during the winter when
there were few groundskeeping duties. Paxton did not have
as much formal education as Shonk, but is registered with
the Ohio Apprenticeship Council as a maintenance machinist.
He also has a certificate of completion of boiler school and
a certificate of completion of mediatech training sessions for
customer relations classes as well as a certificate of highvac
inservice for air conditioning units (the sort of work done on
the air conditioning units at the hospital).
Shonk had worked at the hospital for about a year on a
part-time basis, 2 or 3 days a week and was admittedly not
well versed in all of the various inside tasks involved. For
example, on one occasion Shonk left a note2 for another em-
ployee wherein Shonk stated that he couldn’t figure out the
fittings needed to hook up an air dryer.
Shonk testified that he sometimes saw Paxton working in-
side and considered him to be qualified. As noted, Shonk
also admitted that he could not perform all the requirement
of the Technician II inside job, but explained he could per-
form to a high degree of proficiency. He further explained
that he had no experience in various phases of Respondent’s
maintenance department, specifically air handler, boilers, and
chillers and that he had minor experience in light plumbing,
light electrical, and light carpentry work, all areas at which
Paxton was proficient.
The Union had started an organizing drive in the late sum-
mer of 1988. Paxton was one of the most active supporters,
was the president of the local union organizing committee,
and was involved in picketing, arranging union meetings,
distributing pamphlets and newsletters. He personally passed
out approximately 150 union authorization cards. As a result
of the organizational drive, representation petitions were filed
on April 20, and May 1, 1989, respectively. These petitions
are currently pending.
Respondent specifically knew of Paxton’s support of the
Union as the result of union letter sent in March or April
1989 to Respondent’s president which listed the names of in-
dividuals on the union organizing committee, including
Paxton. Paxton also regularly wore his union jacket with
union insignia to work and his immediate supervisor at that
time, Lee Miller, was well aware of his union activities.
In early May approximately 2 weeks after Miller had be-
come maintenance supervisor, Miller told Paxton that ‘‘they
weren’t here to get anybody fired; that they could work with
the union or without a union.’’ Subsequently, in mid-June,
Paxton complained to Miller about a switch from day shift
to second shift. Miller responded with a ‘‘tirade’’ about a
UAW auto plant in Wisconsin saying that he had been at the
plant and that there were people on the assembly line for 30
years without any formal education and the union had the au-
dacity to have them believe that they could live in a white
collar neighborhood with Miller. Miller then threw up his
hands and said, ‘‘Thank God there is no union in this place.
As long as I’m here, there never will be.’’ Miller then point-
ed his finger in Paxton’s face and said, ‘‘Mister, you are a
fool and the men in the shop are fools to think the Union
is going to help you.’’ Paxton responded by telling him,
‘‘Mister, you don’t call me a fool’’ and walking out of Mil-
ler’s office.
Charles Hockman is a Technician IV electrician. He also
testified that on two occasions in September Miller brought
up the topic of unions with statements to the effect that he
didn’t like them, they didn’t take care of their people, and
they were a bad idea.
Shonk, who was a retired Air Force enlisted flight crew
member with 21 years of service, worked at several mechani-
cal or maintenance job after his discharge in 1969. His appli-
cation for the Technician II position, dated August 24 stated
that he had 20 years experience in various maintenance ca-
pacities, with 10 months experience as a Technician II, part
time, and that he desired a full-time position.
His transfer application reflects that he was interviewed
August 25 and selected for transfer effective September 1
(the number is written over to reflect a 7). In addition to
Miller’s approval signature and the date September 1 (again
written over to reflect a 7), Miller also signed and dated the
bottom corner of the form on August 25, the same day as
the interview. No department stamp appears on the docu-
ment, however, there is a written ‘‘OK’’ with initials not oth-
erwise identified that clearly are not those of Respondent’s
witnesses, Vice Presidents Robert Coholich and Carol Thom-
as.
Shonk testified that he learned of his award about a week
before Labor day which would be Monday, August 28, when
he saw it written on the shop’s chalk board, along with the
notice of a Technician IV promotion for employee Rob Ruyf,
however, that same afternoon it was removed. He then was
contacted by Miller who told him that he must get any addi-
tional records of previous technical and general schooling.
Although Shonk was on the clock, Miller said he could go
home immediately and look. Miller further said he wanted
the records because he had found out that Paxton was going
to file a grievance, and that he did not want the grievance
to be validated because he didn’t want Paxton working in-
side.
Paxton was not interviewed until September 7 and was
never asked to provide any supplemental materials. Paxton
testified that the so called ‘‘interview’’ was only a general
conversation about how Miller wanted to know him better
and his past experience as a truck driver, and some com-
ments about cross training between departments. Respond-
ent’s application form has a blank that provides for the ‘‘spe-
cific reasons’’ an applicant is not selected. Paxton’s applica-
tion states he was not selected because the other candidate
had ‘‘significantly more experience and education’’—making
him ‘‘better suited for the vacancy.’’ Paxton’s application
was stamped received August 25 by personnel and it also
had the same date and Miller signature in the bottom corner.
241LANCASTER-FAIRFIELD COMMUNITY HOSPITAL
Paxton testified that late in September, Miller met with
employee Dave Smith (who independently testified to essen-
tially the same facts), and Paxton and the new Technician
IV, Rob Ruyf. Miller said that Ruyf had a communication
problem with the other maintenance department employees
and that as Paxton and Smith were perceived as leaders, he
wanted them to help. Miller went on to say ‘‘I would like
for you to help me sway the men away from unionism and
join the hospital team in a win, win, win situation.’’ Paxton
said he needed time to consider it. A couple of days later
he told Miller, ‘‘all things considered I don’t trust you and
there is no way I can support you in whatever you want to
do in the maintenance department.’’
Meanwhile a grievance meeting was held regarding the de-
nial of Paxton’s transfer request. The grievance was denied
by the committee by memo dated October 19. By letter dated
November 2. Respondent’s president indicated that he had
reviewed the decision and said that he agreed with Paxton
that his ‘‘application for transfer was not handled properly’’
but that it would not be overruled because there was an ob-
jective basis for the decision, i.e., the comparison of formal
education and training. He also stated that he was ‘‘hopeful
that the current vacancy in your department will provide an-
other opportunity.’’
In November Technician III General, second-shift em-
ployee Steve Walck left and Shonk applied for and was
given the position effective in February 1990.
Also in early November Paxton learned that the Techni-
cian II inside General position was open. He applied for it
on November 20, was interviewed by Miller and was award-
ed the position on November 21, the day after he applied,
however, he continued his groundskeeping duties for a cou-
ple of weeks (except when weather was bad) until the hos-
pital was able to hire someone to become the new
groundskeeper. Meanwhile, Dave Reed moved from his
Technician III mechanical position as assistant to Steve Bur-
gess in the boiler room to a position as Technician III Gen-
eral and Paxton was assigned to the boiler room position,
still as a Technician II, and was never given the Technician
II General position or duties once performed by Roger Mays,
that he had expected.
Meanwhile, Miller had been replaced as supervisor by
Charles Ebel. Respondent and General Counsel stipulated
that Ebel has the same job duties as Miller and replaced Mil-
ler in the same position, and I find that although both Miller
and Ebel were not directly employed by the Respondent, but
by Service Master Corporation, an independent management
firm under contract with Respondent, both Miller and Ebel
are Respondent’s agents.
David Moore is a Technician IV electronics, with 14 years
service at the hospital. Moore testified that he was familiar
with the various jobs and had served as acting manager of
plant engineering in the spring of 1989, until Miller became
manager. He testified that he was involved in the formulation
of a flow chart first formulated in 1982 (G.C. Exh. 13)
which explained the job positions in maintenance. Moore tes-
tified that Paxton is now in the position formally held by a
Technician III mechanical, Dave Reed, a position in the
plumbing and mechanical division of maintenance in the
boiler room. (When Reed vacated the position but retained
his III level of pay where he is now working.) As Paxton
and Moore understood it, the position that Paxton bid on and
was awarded the second time he bid on it, was the Techni-
cian II General maintenance position and is supposed to be
part of a Technician II General ‘‘pool’’ in the shop.
The Respondent introduced another chart (R. Exh. 11)
which purports to be the organizational chart as of October
3, 1989. This list Dave Reed as a Technician III General
under Technician IV Rob Ruyf and Paul Shonk as a Techni-
cian III mechanical under Technician IV Steve Burgess,
however, the III is partially crossed out to make it a II.
Robert Coholich, Respondent’s vice president for support
services, testified that it was his understanding that Shonk
transferred from his Technician II mechanical position on the
1989 chart to the Technician III General position vacated by
Steve Walck in November 1989 creating the vacancy for
Paxton’s November transfer. He also asserts that Rodger
Mays’ Technician II vacancy had no relevancy to the No-
vember job posting as he left in July and his position was
filed, however, Respondent job posting of August 21, 1989,
for a Technician II position specifically states ‘‘person need-
ed to fill position vacated by Rodger Mays.’’ No document
reflecting any posting for the November vacancy was intro-
duced or shown to exist.
Coholich testified that after Miller had interviewed both
candidates and recommended Shonk, he agreed with Miller
and made the actual decision. No documentation regarding
dates or bearing Coholich signature or initials was submitted
that would tend to corroborate this testimony. Otherwise, I
find it to be inconsistent with Respondent’s documents con-
taining Miller’s signature regarding interviews, and the selec-
tion and nonselection of Shonk and Paxton, respectively. It
also is inconsistent with the credible testimony of Shonk and
Paxton and I conclude that Coholich’s testimony should not
be credited.
Coholich also gratuitously testified that Shonk was trans-
ferred in September to work under Technician IV Steve Bur-
gess (rather than the position held by Roger Mays as speci-
fied in Respondent’s vacant position posting dated August
21, 1989. This, however, is inconsistent with the testimony
that Dave Reed held that position until November, and
Shonk’s testimony that he did not move to Walck’s vacant
Technician III General, second-shift position until February
1990, Shonk’s testimony reveals some comment about var-
ious general Technician II duties but he made no reference
to working in the boiler room under Burgess and I find that
Coholich is not shown to have any personal knowledge of
these events but instead testified in a speculative fashion
about generalized situations that would tend to show Re-
spondent’s actions in the best possible light. Accordingly, I
do not credit his testimony.
On February 2, 1990, Paxton initiated a conversation with
Department Manager Ebel about the fact that he was basi-
cally doing Dave Reed’s old job in the boiler room, which
had been a Technician III position. He said he was not per-
forming the duties of a Technician II General that he had bid
on and suggested that he should be paid Technician III
wages. At one point during the conversation Ebel responded,
‘‘Well, the reason why you are over in the boiler room is
to keep you out of sight and out of the mind of the adminis-
tration because they are so goddamn mad at you. After a
while when things cool down and I feel it is the appropriate
time I’ll try and approach them and see about these jobs that
you are talking about.’’
242 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 McKelvey testified and was asked by Respondent’s counsel what he meant
by his statement and he asserted that he was only referring to the manner
whereby Paxton heard about Shonk’s award of the position. I find this testi-
mony to be self-serving, inherently implausible, and inconsistent with the plain
language of the written document, especially in view of the same letter’s im-
plicit suggestion that Paxton would be given a transfer to the new vacancy
in the department.
Ebel recalled having such a conversation and telling
Paxton ‘‘it was probably good he was stationed in the boiler
room because he didn’t have to have contact with administra-
tion.’’ He believes that Paxton said, ‘‘out of sight, out of
Mind’’ and that he himself said something to the effect that
‘‘its probably good that those you feel are upset with you are
not in contact with you.’’
Finally, Paxton testified that he is isolated in the boiler
room and normally doesn’t come into contact with more than
two or three people a day.
III. DISCUSSION
In a case of this nature, applicable law requires that the
General Counsel meet an initial burden of presenting suffi-
cient evidence to support an inference that the employee’s
union or other protected concerted activity was a motivating
factor in the employer’s decision to deny his bid to transfer
to another job. Here, the record shows that Paxton was one
of two principal union activists and that his activities were
know to management, especially his immediate supervisor,
Maintenance Manager Miller. The unrefuted, credible testi-
mony of Paxton and others shows that Miller overtly ex-
pressed his dislike of unions, including one specific occasion
when Miller said, ‘‘Thank God there is no union in this
place. As long as I’m here, there never will be.’’, and then,
pointed his finger in Paxton’s face and said, ‘‘Mister, you are
a fool and the men in the shop are fools to think the Union
is going to help you.’’
Shortly thereafter, Miller played the principal role in se-
lecting a candidate other than Paxton for a lateral transfer to
a vacant position. The circumstances surrounding this selec-
tion process were so questionable, as further discussed
below, that Respondent’s president McKelvey agreed in his
letter of November 2, to Paxton that ‘‘your application for
transfer was not handled properly.’’3
I find that the General Counsel has met his initial burden
by presenting a prima facie showing, sufficient to show
antiunion animus and to support an inference that Paxton’s
activity in support of the Union was a motivating factor in
Respondent’s handling of his transfer application, its decision
to award the position to someone else, and its subsequent de-
cision to change the nature and duties of the position. Ac-
cordingly, the testimony will be discussed and the record
evaluated in keeping with the criteria set forth in Wright
Line, 251 NLRB 1083 (1980), see NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983), to consider Re-
spondent’s defense and, in the light thereof, whether the
General Counsel has carried his overall burden.
Respondent’s defense is based on several misplaced con-
tentions, including an argument that Manager Miller had no
authority to approve or deny Paxton’s transfer, that higher
level supervisors, including Vice Presidents Robert Coholich
and Carol Thomas, were not shown to have animus relative
to their actions in the decision, and that there is no causal
link between Miller’s general dislike of unions and the Re-
spondent’s decision not to give the transfer to Paxton.
As noted above, Miller had more than a general dislike of
unions, he had expressed strong and specific antiunion state-
ments directed specifically at Paxton and these statement are
chargeable to the Respondent. Moreover, Miller conducted
all pertinent supervisory actions relative to the transfer appli-
cations including interviews of candidate and the signing of
his approval or disapproval of the transfer request. These ac-
tions were accepted by Respondent’s other supervisors, even
after they clearly were made aware of the irregularities in-
volved in the selection process. Their apparent failure to ad-
dress these irregularities is inferred to be a management deci-
sion to attempt to cover up the improper handling of
Paxton’s transfer request motivated by Paxton’s involvement
in union activities. This conclusion is reinforced by manage-
ment’s subsequent decision to effectuate approval of
Paxton’s second transfer request in such a manner as to deny
him the job he was seeking and instead placed him in a boil-
er room position where he would be severely limited in his
contact with most other employees. Moreover, and contrary
to Respondent’s assertions, the self-serving declarations by
Coholich and Thomas denying any relationship between
Paxton’s union activities and their decisions to endorse Mil-
ler’s actions is contradicted by the overall record, and I find
that management would not have accepted Miller’s actions in
denying Paxton’s transfer application were it not for their
tactic support of his actions based on their own displeasure
with Paxton’s union activities.
Respondent also suggest that the testimony of the General
Counsel’s witnesses is not credible because three of them
filed charges with the Board.
It also asserts that the General Counsel failed to substan-
tiate the context of their conversations with Manager Miller
because the General Counsel failed to call Miller as his wit-
ness. Clearly, Miller was an agent of the Respondent at all
applicable times and apparently still is employed by the man-
agement service company under contract with Respondent.
The General Counsel had no obligation to call a potentially
adverse witness and to the contrary, I find that Respondent’s
failure to call Miller as its witness support the adverse infer-
ence that if called his truthful answers would have confirmed
the statements and actions attributed to him by the General
Counsel’s witnesses. Moreover, the fact that two employee
witnesses testified regarding Millers statements even though
no complaint was issued on their own charges is not some-
thing that can be evaluated as detrimental to their credibility.
To the contrary, their participation in the hearing tends to in-
volve more risk than gain, and here tends to enhance their
credibility. Otherwise, the General Counsel’s witnesses testi-
fied in a forthright and believable manner that stands essen-
tially uncontradicted by any probative evidence to the con-
trary and I specifically credit their testimony in all respects.
Finally, Respondent asserts that it had a legitimate busi-
ness reason for its responses to Paxton’s transfer requests;
however, I find that its continued assertions that the vacant
position was given to applicant Shonk rather than Paxton
solely because of their respective qualifications is clearly
false and pretextual.
The testimony and Respondent’s own records show that
Miller interviewed Shonk on August 25 and approved his
transfer the same day. This approval became public when the
243LANCASTER-FAIRFIELD COMMUNITY HOSPITAL
information was placed on the shop chalk board on August
28, before being removed. Shortly thereafter, Miller told
Shonk to go home (on the clock), to get proof of additional
qualifications because he had found out that Paxton was
going to file a grievance, and that ‘‘he did not want the
grievance to be validated because he didn’t want Paxton
working inside.’’
After Shonk’s transfer was approved and after his applica-
tion was supplement by additional educational records,
Paxton was given a pretextual interview along very general
lines, unrelated to the job in question, and he was not asked
to nor was he given the opportunity to supplement his
records.
Respondent then had the opportunity to redress Miller’s
actions when Paxton pursued his grievance on the matter,
however, vice presidents Coholich and Thomas refused to ac-
knowledge the impropriety of Miller’s selection and endorsed
a ‘‘cover up’’ rational based on subsequently acquired infor-
mation assertedly indicative of better qualification.
I find it unnecessary to rely on any further analysis of the
comparative qualifications because the critical decision was
made prior to any belated attempt to rationalize the selection
as one based on something other than one motivated by a de-
sired to keep union support Paxton from getting a lateral
transfer to a position inside the hospital. However, it appears
that Shonk’s experience and educational background is some-
what irrelevant to the Technician II General position in-
volved. Clearly, his limited, part-time experience on the job
would not in fact be ‘‘significant’’ or make him ‘‘better suit-
ed for the vacancy,’’ as compared with Paxton’s training, his
6 years of practical experience and his recognized success
and skills at handling the various jobs involved in the regular
inside Technician II General position. Accordingly, I find
Respondent’s endorsement of the rejection of Paxton’s trans-
fer because the other candidate had ‘‘significantly more ex-
perience and education’’—making him ‘‘better suited for the
vacancy,’’ is so overblown and unjustified as to be further
evidence of the pretextual nature of Respondent asserted rea-
sons.
The record also shows that a series of personal changes
were made in November with Technician III General, sec-
ond-shift employee Steve Walck leaving and Shonk being
awarded a transfer to that position. Paxton had been alerted
in the November 2 letter from Respondent’s president that
there was a current vacancy in his department. He then ap-
plied for a ‘‘Technician II inside shop’’ position (no evi-
dence of any specific job posting description was placed in
the record). Miller promptly interviewed Paxton and ap-
proved his selection for transfer, however, there is no indica-
tion that anything was ever said about the vacant positions
duties being in the boiler room or that the position would be
Technician II mechanical rather than Technician II General.
Contemporaneously, David Reed was moved from his Tech-
nician III mechanical position to an apparently new Techni-
cian III General position and, after several weeks while
Paxton continued outside groundskeeping duties pending the
hiring of a replacement, Paxton was placed inside and as-
signed to perform boiler room duties as assistant to Techni-
cian IV mechanical, Steve Burgess.
It is clear from these circumstances that the November va-
cancy was the same vacancy that Paxton had applied for in
August (that was improperly awarded to Shonk), and that it
became open again when Shonk was given a transfer to
Walck’s second-shift Technician III General position.
Although, Vice President Coholich presented an organiza-
tional chart dated October 3, 1989, which could allow a dif-
ferent interpretation, I find this chart to be unreliable and I
am not persuaded that it existed when the involved personnel
action was taken or that it played any role in defining or de-
termining the personnel moves otherwise discussed.
In substance, Reed moved from his Technician III me-
chanical (in the boiler room) to a Technician III General po-
sition, same pay in September 1989. At some unknown time
Shonk’s name was placed on Coholich’s chart in the me-
chanical position formerly held by Reed but Shonk did not
testify about any work in the boiler room (he has no boiler
experience) and testified that since February 1990 he holds
a Technician III General position on the second-shift. Paxton
applied again for the vacant Technician II General position,
inside, but was placed in the boiler room position formally
held by Reed, and paid at a Technician II level.
When Paxton subsequently confronted new department
manager, Charles Ebel. Ebel said, ‘‘Well, the reason why
you are over in the boiler room is to keep you out of sight
and out of the mind of the administration because they are
so goddamn mad at you. After a while when things cool
down and I feel it is the appropriate time I’ll try and ap-
proach them and see about these jobs that you are talking
about.’’
Ebel candidly admitted having a conversation where some-
thing similar was said and I fully credit Paxton’s testimony
in this respect.
Under these circumstances, it is clear that some of Re-
spondent’s supervisors other than the departed Miller, contin-
ued to be ‘‘mad’’ at Paxton because of his union involve-
ment. It also is clear that despite any rationalization by Re-
spondent regarding alleged business reasons for its placement
and the assignment of duties to employees, the assignment
of Paxton to the boiler room was motivated by a desire to
camouflage its earlier discrimination against him by making
it appear that it was granting approval to his requested trans-
fer. At the same time, however, it attempted to isolate him
from contact with other employees until the union activities
at the facility dissipated and this action also discriminated
against Paxton.
Accordingly, I find that the Respondent has failed to show
that its actions regarding Paxton’s job transfers were sup-
ported by legitimate business reasons. I further conclude that
the General Counsel otherwise has met his overall burden of
proof and I find that by denying Paxton’s transfer request on
September 8, 1989, and by failing to implement a purported
transfer on November 21, 1989, to the job applied for, be-
cause of Paxton’s protected activities on behalf of the Union,
Respondent has violated Section 8(a)(1) and (3) of the Act
as alleged.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By denying employee Richard Paxton’s transfer request
on September 6, 1989, and by failing to implement a transfer
on November 21, 1989, to the appropriate position, Respond-
244 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Under New Horizons, interest is computed at the ‘‘short-term Federal rate’’
for the underpayment of taxes as set out in the 1986 amendment to 26
§ U.S.C. 6621.
5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
6 If this Order is enforced by a judgment of a United States court of appeals,
the words in the notice reading ‘‘Posted by Order of the National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
ent engaged in unfair labor practices in violation of Section
8(a)(1) and (3) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices, it is recommended that the Respondent be ordered
to cease and desist therefrom and to take the affirmative ac-
tion described below which is designed to effectuate the poli-
cies of the Act.
With respect to the necessary affirmative action, it is rec-
ommended that Respondent be ordered to offer Richard
Paxton reassignment in a position with inside day shift,
Technician II General duties (as distinguished from nominal
Technician mechanical duties assignment in the boiler room),
with seniority or other rights and privileges retroactive to
September 1, 1989, and make him whole for any loss of
earnings he may have suffered because of the discrimination
practiced against him by payment of a sum of money equal
to that which a Technician III normally would have earned
for the dates he was discriminatorily placed with duties as
a Technician III mechanic (boiler room) position to the date
of reassignment, with interest as computed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).4
Otherwise, it is not considered to be necessary that a broad
order be issued.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
The Respondent, Lancaster-Fairfield Community Hospital,
Lancaster, Ohio, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Denying transfer of otherwise qualified employees or
implementing transfer of employees to positions different
from that which were applied for because of their engaging
in activities protected by Section 7 of the Act.
(b) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Richard Paxton reassignment to inside, day-shift
Technician II General duties and make him whole for any
loss of earnings he may have suffered while performing
Technician III mechanical (boiler room) duties without re-
ceiving an appropriate increase from Technician II com-
pensation, losses incurred as a result of the discrimination
against him, in the manner specified in the remedy section
above.
(b) Preserve and, on request, make available to the Board
or its agents for examination and copying, all records, re-
ports, and other documents necessary to analyze the amount
of backpay due under the terms of this decision.
(c) Post at its Lancaster, Ohio facility, copies of the at-
tached Notice marked ‘‘Appendix.’’6 Copies of the notice,
on forms provided by the Regional Director for Region 9,
after being duly signed by an authorized representative of
Respondent, shall be posted by Respondent immediately
upon receipt thereof and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to ensure that
said notices are not altered, defaced or covered by any other
material.
(d) Notify the Regional Director in writing 20 days from
the date of this Order, what steps the Respondent has taken
to comply.